A proposed bill allows nonfinal circuit and appeals court orders halting statewide enforcement of state statutes to be reviewed immediately as a matter of right. This article explores the potential “separation of power” issues with that proposal.

Jan. 15, 2014 – Circuit court judges have the discretionary power to issue temporary injunctions that command or prevent an action, but a proposed bill would largely take that power away when it comes to halting enactments of the Wisconsin Legislature.

Under the original version of AB 161 that passed the state Assembly in June 2013, injunctions and restraining orders that halt statewide enforcement of state statutes are “automatically stayed” if a petition for appellate review is filed within 10 days.

The stay remains in effect until a higher court rules otherwise. Under current law, an injunction remains effective unless and until a higher court overturns the ruling.

“The bill would prohibit judges from actually acting on an injunction and allow unconstitutional laws to remain effective,” said Ann Jacobs, a personal injury attorney and president-elect of the Wisconsin Association for Justice, which opposes the bill.

A new version of the bill, which recently passed the Senate’s Judiciary and Labor Committee, strips the “automatic stay” language but would still allow parties to immediately appeal, “as a matter of right,” injunctions or other nonfinal orders of the circuit and appeals courts that halt the statewide enforcement of state statutes.

Original Bill: Separation of Powers Issue?

The original bill likely addresses litigation that stopped enforcement of Act 10, which curbed the collective bargaining rights of most public workers. In 2012, a Dane County Circuit Court judge ruled that major provisions of Act 10 were unconstitutional.

The ruling effectively halted enforcement of Act 10 while the case made its way to the Wisconsin Supreme Court, which is expected to decide the case on the merits within months. The court heard oral arguments from both sides last November.

org jforward wisbar Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by org jforward wisbar email or by phone at (608) 250-6161.

Similarly, a circuit court order halted a 2011 law (Act 23) that requires Wisconsin citizens to show photo identification to vote. That law is also on hold pending litigation.

Rep. David Craig said original AB 161 would “facilitate a fair and more efficient judicial system by ensuring that one judge cannot unilaterally prevent the implementation of state law without the possibility of an expedited review by a higher court.”

Sen. Glen Grothman, a bill co-sponsor, said the legislation would prevent “activist judges” – who may preside over a very small portion of the state – from halting laws passed by a legislature that represents constituents statewide.

However, attorneys for the Wisconsin Legislative Council raised the possibility that “portions of the bill could be found unconstitutional” under the separation of powers doctrine, which prohibits the legislature from intruding on the judiciary’s core powers.

Legislative Council attorneys noted that the legislature and the judiciary share the power to regulate judicial practice and procedure, pursuant to Wis. Stat. section 751.12. But they also note that some aspects of the bill could be construed as crossing the line.

“Arguably, the provision of the bill that would most likely be subject to legal challenge is the provision automatically staying a circuit or appellate court order that suspends or restrains the enforcement of any state statute,” Legislative Council lawyers explained.

Jacobs said the idea that a law ruled unconstitutional would remain enforceable unless and until a higher court rules otherwise would be “bizarre” and unconstitutional in itself.

“The other thing to think about is that trial court judges are not imposing their objections to a law willy-nilly,” she said. “There’s a pretty high standard to get an injunction.”

Bill Altered, Automatic Stay Out

Last week, a Senate committee voted to eliminate the “automatic stay” language and passed a new version of AB 161 for consideration by the full Senate.

The new version, which would need Assembly approval, makes circuit and appeals court injunctions, restraining orders, or other nonfinal (interlocutory) orders that suspend the enforcement of any statute “immediately appealable as a matter of right.”

Currently, only “final judgments and orders” of the circuit court are appealable as a matter of right, unless otherwise expressly provided by law.1 A final judgment or order is a judgment, order, or disposition “that disposes of the entire matter in litigation.”

But allowing immediate appeals of nonfinal orders that relate to enforcement of statutes could also implicate the separation of powers doctrine, Legislative Council lawyers say, because it could be viewed as a “requiring” the supreme court to review such cases.

Under the state constitution,2 the supreme court “may” review judgments and orders of the court of appeals, “may” remove cases from the court of appeals and “may” accept cases on certification by the court of appeals. The court is not required to hear them.

If the bill is requiring the supreme court to review nonfinal orders issued by the appeals court “as a matter of right,” there may be a separation of powers issue afoot.

"Whether or not the legislature can force the supreme court to hear a case that they don’t think they should hear is a fascinating question,” Jacobs said.

Jacobs noted the Wisconsin Association for Justice opposes the original bill but will reassess its position given the major changes in the new version of AB 161.